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In a ruling that could dent the ambitions of cloud-based online video in Europe, making copies of TV programmes saved in the cloud does not fall within private copying exceptions and must be authorised by rights and copyright holders says a judgement by the Court of Justice of the European Union.

The judgement will have serious ramifications for multinational cloud DVR services in the EU and follows a case brought by UK online video provider VCAST, which makes Italian terrestrial TV programmes available via a remote video recording system. Customers selects a programme and a time slot and VCAST then picks up the television signal using its own antennas and records the time slot for the selected programme in the cloud data storage space indicated by the user, thereby making the copy of the programmes broadcast available to the customer via the Internet.

In seeking a declaration from the District Court of Turin on lawfulness of its activities, VCAST invoked the private copying exception, according to which the authorisation of the copyright owner or holder of related rights is not necessary in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rights holders receive fair compensation. This is covered by Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001.

Following an application for interim measures submitted by Italian broadcaster RTI whose programmes had been recorded, the Turin District Court provisionally prohibited VCAST from pursuing its activity. Before delivering its ultimate decision, it decided to submit questions to the Court of Justice for a preliminary ruling asking, in essence, whether VCAST’s service, provided without the consent of the copyright owner or holder of related rights, is compatible with the Copyright Directive.

The Court of Justice of the European Union found that the service provided by VCAST has a dual functionality, consisting in ensuring both the reproduction and the making available of protected works. To the extent that the service offered by VCAST consists in the making available of protected works, the court ruled that it falls within communication to the public. According to the directive, any communication to the public, including the making available of a protected work or subject-matter, requires the rights holder’s consent, given that the right of communication of works to the public should be understood, in a broad sense, as covering any transmission or retransmission of a work to the public by wire or wireless means, including broadcasting.

The Court concluded that the de facto retransmission made by VCAST constitutes a communication to a different public from that of the original transmission and must therefore receive the consent of the copyright owner or holder of related rights.